Limitations on Use of Recordings

At certain times organizations may wish to obtain audio or video recordings of employees to ensure proper customer service, provide feedback or for obtaining grounds to terminate an employee. It is important to understand that privacy legislation limits the collection, use and disclosure of personal information gained from those recordings. This is especially relevant if the recordings were obtained without the employee’s knowledge or consent and the organization wishes to rely on such a recording.

PIPA governs how an organization may collect, use and disclose personal information, including personal employee information. Personal information is defined under PIPA as "information about an identifiable individual" and therefore could include information via video or audio recordings in which an individual may be identified.

Under PIPA, an organization may collect, use or disclose personal employee information about an individual without the consent of the individual if:

a) the information is collected solely for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual;

b) it is considered reasonable to collect the information for the particular purpose for which it is being collected; and

c) in the case of an individual who is a current employee of the organization, the organization has, before collecting, using or disclosing the information, provided the individual with reasonable notification that personal employee information about the individual is going to be collected, used or disclosed and of the purposes for which the information is going to be collected, used or disclosed.

If an organization has implemented a policy or provided notice regarding the organization’s collection of audio or video recordings of employees during their course of employment, then the organization may be able to use such information to manage the employment relationship, including the employer’s ability to use such information to terminate employment.

However, if no such policy or notice has been provided, then the organization should be cautious in its use of the employee’s personal information as using the same may place the employer offside of privacy legislation.

For example, an organization installs an audio surveillance system in a common office area unbeknownst to the organization’s employees. Upon listening to the recordings, management discovers that one particular employee has been making disparaging comments to other employees about the organization and its management team. If the organization uses this information to terminate employment, the organization may find itself in contravention of PIPA and potentially subject to a privacy complaint or wrongful dismissal claim.

Certain exceptions may apply, such as when the collection, use and disclosure of employee personal information is necessary in order for the organization to comply with applicable law. However, subject to reliance on an applicable exception, if an organization intends to collect audio or video recordings of employees, the organization should first provide its employees with reasonable notice of such intention. Regardless of the intent of an organization for collecting recordings of employees, the organization should be cautious in using such materials and should considering consulting with legal counsel prior to doing so.

All privacy and employment matters should be analyzed on case-by-case basis with one of our lawyers.

Invitation for Discussion:

If you would like to discuss this blog in greater detail, or any other business law matter, please do not hesitate to contact one of the lawyers in the Business Law group at Shea Nerland LLP.

Disclaimer:Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.